Policy considerations as an overriding
mechanism against peremption in the
South African Labour Law
R Venter
Orcid.org 0000-0003-1378-6682
Mini-dissertation accepted in partial fulfilment of the
requirements for the degree
Master of Law
in
Labour Law
at the
North-West University
Supervisor: Dr A Botes
Graduation ceremony: May 2019
Student number: 20537298
i
ABSTRACT
One of the primary objects of labour law litigation and similarly arbitration, is for an unbiased third party to come to a binding decision regarding a labour related matter. This would imply that justice is served as each party received the outcome that they deserved. Any party who may be unsatisfied with the said outcome, would have the option to appeal the judgment or take the arbitration award on review. In stark contrast to the labour law rights to appeal and review, is the doctrine of peremption. The doctrine of peremption is available as a defence in labour law proceedings where one party has exercised the option not to apply for appeal or review, and thereafter decided to alter that decision. Due to the severe impact that a successful plea of peremption would have on the rights of the unsatisfied litigant, the courts have adopted strict requirements for the successful implementation of the doctrine of peremption. In recent court cases there has been a deviation from the strict enforcement of the doctrine where courts have decided not to allow the successful plea of peremption despite the fact that all the requirements have been met effectively. The focus of this study will be on the identified policy considerations that have influenced the courts in their decision to enforce peremption or not. The two most prominent policy considerations is in the interest of justice, equality and non-racism. The study aims to provide some content and context for the in the interest of justice policy consideration. It is against this backdrop that focus will be placed on social justice in labour law and how it can influence a court to decide against the enforcement of peremption. The study will also investigate the policy standard of equality and how the infringement thereof, through racial remarks in the workplace, will affect the application of the doctrine of peremption. The outcome of the research shows that policy considerations will have an impact on the doctrine of peremption as the courts have opted to overlooked peremption due to the importance of policy considerations such as in the interest of justice and equality in an equal society such as South Africa.
KEY WORDS
Doctrine of peremption; appeal; review; policy considerations; in the interest of justice; equality and non-racism
ii LIST OF CONTENT EXTRACT i LIST OF CONTENT ii LIST OF ABBREVIATIONS iv CHAPTER 1: INTRODUCTION 1.1 Background 1 1.2 Research question 3 1.3 Research methodology 3 1.4 Framework of the study 4
CHAPTER 2: DOCTRINE OF PEREMPTION 5 2.1 Introduction and definition 5 2.2 Illustration of the application of the doctrine of 8
peremption in labour law matters
2.2.1 National Union of Metalworkers of South Africa (NUMSA) 8 & Others v Fast Freeze (hereafter Fast Freeze case)
2.2.2 Balasana v Motor Bargaining Council (hereafter Motor 11 Bargaining Council Case)
2.2.3 National Union of Metalworkers of South Africa (NUMSA) 14 obo Thilivali v Fry’s Metals and others (hereafter Fry’s Metal case)
2.3 Non-enforcement of the doctrine of peremption in 17 certain labour law matters
2.4 Conclusion 18
CHAPTER 3: IN THE INTEREST OF JUSTICE AS POLICY CONSIDERATION 21
3.1 Introduction 21
3.2 Justice and social justice in the labour context 24
3.2.1 Labour law’s theory of justice 24
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3.3 In the interest of justice-test and the impact of social 31 justice on the doctrine of peremption in labour matters
3.4 Conclusion 36
CHAPTER 4: EQUALITY AND NON-RACISM AS POLICY CONSIDERATIONS 38
4.1 Introduction 38
4.2 Equality as a constitutional and social justice value 38 4.3 The meaning of unfair discrimination 41 4.4 Racial harassment as a form of unfair discrimination 44
4.4.1 Harassment 45
4.4.2 Racial harassment 45
4.5 South African Revenue Service (SARS) v CCMA 47 (hereinafter SARS case)
4.5.1 Labour Court litigation 47
4.5.2 Constitutional Court litigation 50
4.6 Conclusion 54
CHAPTER 5: CONCLUSIONS AND RECOMMENDATIONS
5.1 Introduction 56
5.2 Summary and concluding remarks 56
iv
LIST OF ABBREVIATIONS
AHRLJ African Human Rights Law Journal
BCEA Basic Conditions of Employment Act 75 of 1997 CC Constitutional Court
CCMA Commission for Conciliation, Mediation and Arbitration CCR Constitutional Court Review
EEA Employment Equity Act 55 of 1998
CILSA Comparative and International Law Journal of South Africa ILO International Labour Organisation
ILJ Industrial Law Journal LAC Labour Appeal Court LC Labour Court
LRA Labour Relations Act 66 of 1995 PELJ Potchefstroom Electronic Law Journal SAJHR South African Journal of Human Rights SA Merc LJ South African Mercantile Law Journal SAPR Suid Afrikaanse Publiek Reg
SARS South African Revenue Service
THRHR Tydskrif vir hedendaagse Romeinse Reg TSAR Tydskrif vir Suid-Afrikaanse Reg
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CHAPTER 1: INTRODUCTION
1.1 Background
In South African Labour Law, an unsuccessful or unsatisfied party who wishes to review an arbitration award or apply for appeal, normally holds the option to exercise such rights in terms of the Labour Relations Act 1 (hereinafter LRA). However, there
is a common law doctrine, known as the doctrine of peremption, which may limit or terminate a litigant’s right to appeal or review a labour law matter if enforced by a court. If a litigant is successful with a plea of peremption, the other litigating party will be prevented from departing from their initial decision to abide with the outcome of a matter and subsequently appeal or review the matter.2
The doctrine of peremption provides that where litigating parties have two options available and they opted to exercises one such option, they cannot exercise the other option afterwards.3 Once a litigant has indicated that they do not wish to
attack the outcome of a matter, it should be concluded as a final decision. The courts have taken a stance that the doctrine of peremption will only be affected if the conduct of an unsuccessful litigant indicates "indubitably" that he does not intend to attack the judgment.4 Such conduct must be unequivocal and must be incompatible
with any intention to appeal.
In South African labour matters, the doctrine of peremption was endorsed, amongst others, in the case of National Union of Metalworkers of SA & others v Fast Freeze.5
The court established that when a litigant to a labour matter decides to acquiesce in the outcome of the matter, by means of an act fully inconsistent with the intention to confront the judgment, the right of appeal is said to be perempted.6 This entails that
the party elected to accept the judgment and therefore will not be able to change the election by deciding to apply for appeal at a later stage. In recent cases there
1 The Labour Relations Act 66 of 1995.
2 Dabner v South African Railways and Harbours 1920 AD 583 at 592. 3 Hlatshwayo v Mare and Deas 1912 AD 242 at 249.
4 Dabner v South African Railways and Harbours 1920 AD 583 para 594.
5 National Union of Metalworkers of SA & others v Fast Freeze 1992 13 ILJ 963 (LAC). 6 National Union of Metalworkers of SA & others v Fast Freeze 1992 13 ILJ 963 (LAC) 969 I.
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has been a firm decision from the judiciary that there are relevant policy considerations that would justify the non-enforcement of the doctrine of peremption. The question now arises: What circumstances would justify a court’s decision to ignore a litigant’s acquiescence and a successful plea of peremption, allowing the unsatisfied party the opportunity to have the matter heard on appeal or review?
In South African Revenue Service (SARS) v CCMA 7 the court established that SARS
took a conscious and firm decision against appealing the decision by the Labour Appeal Court and that peremption occurred. The Constitutional Court had to decide if there were policy considerations allowing the Court the discretion to opt for the non-enforcement of the doctrine of peremption. The Constitutional Court explained that it must be open to a court to disregard acquiescence where the interest of justice would not be served.8 As this case dealt with unfair discrimination concerning racial
harassment, the overriding policy consideration was that it is the court’s constitutional duty to entrench the values of equality, non-racialism and human dignity.9 Accordingly, where the enforcement of that acquiescence would not
advance the interests of justice; the overriding constitutional standard for appealability would have to be granted by purposefully departing from the abundantly clear choice against an appeal.
In the unreported case of Minister of Defence v SA National Defence Force10 the
court followed similar reasoning and held that the general rule that a litigant, "who has intentionally abandoned a right to appeal will not be permitted to revive it" is merely a single aspect of a broader policy that there must be finality in litigation.11 A
court should consequently be open to disregard the acquiescence where wider interests of justice would not be served. In this case it was held that the appellants
7 SA Revenue Service v Commission for Conciliation, Mediation & Arbitration & others 2017 38 ILJ 97 (CC).
8 SA Revenue Service v Commission for Conciliation, Mediation & Arbitration & others 2017 38 ILJ 97 (CC) para 28.
9 SA Revenue Service v Commission for Conciliation, Mediation & Arbitration & others 2017 38 ILJ 97 (CC) para 29C.
10 Minister of Defence v SA National Defence Force (unreported) case number 161/11 ZASCA 110 of 30 August 2012.
11 Minister of Defence v SA National Defence Force (unreported) case number 161/11 ZASCA 110 of 30 August 2012 23.
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are charged with a constitutional duty to maintain a disciplined Defence Force. It would be intolerable if an interdict wrongly granted, were to impede the discharge of such duty.12 The Court also considered the interest of justice as a policy
consideration, mitigating against the enforcement of peremption. The court held that it will not be in the interest of justice if the Defence Force is restricted to such an extent that it could not enforce its constitutional duty to maintain a disciplined organisation.13
Indications are clear that South African courts adopted a somewhat variable approach to applying the doctrine of peremption in labour law, even in matters where there was undoubtable acquiescence in the judgment. The courts recognise that the strict enforcement of legal doctrines, such as peremption, would not serve the interest of justice, in cases involving legal challenges affecting the broader society. These cases require adjudication by the courts. The most apparent policy considerations that appear from the different judgments discussed in this study, is the guiding policy of "in the interest of justice" and a constitutional duty of the courts to entrench values, such as non-racism, equity and human dignity. In this study, these policies and their influence on peremption, were investigated as considerations of such importance, allowing a court to depart from the doctrine of peremption in labour law matters.
1.2 Research question
To what extent do various policy considerations influence the enforcement of the doctrine of peremption once an arbitration award or labour judgment is acquiesced?
1.3 Research methodology
The primary research methodology for this study was a literature review, comprising an analysis of legislation, case law, academic articles and text books. Electronic sources, such as journals and Internet were also reviewed. These sources were
12 Minister of Defence v SA National Defence Force (unreported) case number 161/11 ZASCA 110 of
30 August 2012 para 26.
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consulted to gain knowledge on the common law doctrine of peremption and applying it in South African Labour Law. The review of case law performed a significant part in determining the policy considerations and their extent. This may impact the enforcement of the doctrine of peremption. The study did not focus on one primary case. A critical evaluation of several cases was used to illustrate the difference in applying the principles of peremption in lieu of policy considerations and to explicate the findings.
1.4 Framework of the study
Chapter 1 provides the background and brief introduction of the enforcement of the doctrine of peremption within the South African Labour Law. It further provides the research question that this study aims to answer. Chapter 2 provides a definition of peremption and a general discussion of the application and enforcement of the doctrine of peremption. It is followed by a specific discussion on when the Labour Courts will enforce peremption and when the courts opted not to enforce peremption in labour matters. Lastly the chapter introduces some acknowledged policy considerations, influencing the enforcement of the doctrine of peremption. Chapter 3 comprises the first policy consideration, "in the interest of justice" that influences the judiciary’s decision to enforce peremption. The notion of justice and social justice is explained adjacent to the conditions of labour law. The impact of social justice on the doctrine of peremption is explained through case law. The main focus of the chapter is the illustration of how the courts apply the interest of justice policy against the enforcement of peremption in case law. Chapter 4 focusses on equality and non-racism as an overriding policy consideration against the enforcement of peremption. The chapter contains an analysis of unfair discrimination, explicitly racial harassment, as a form of unfair discrimination. The South African Revenue Service (SARS) v CCMA14 case forms the central focus for illustrating how the enforcement of the
doctrine of peremption was influenced by equality as policy consideration. Chapter 5 comprises the conclusions from the discussions and analyses from the preceding
14 SA Revenue Service v Commission for Conciliation, Mediation & Arbitration & others 2017 38 ILJ
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chapters. The chapter follows brief summaries of the study that concludes to an answer of the research question.
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CHAPTER 2: DOCTRINE OF PEREMPTION
2.1 Introduction and definition
Any party to a labour dispute who wishes to review an arbitration award or appeal against a judgment in any court, is expressly provided the right in terms of Sections 145 and 166 of the Labour Relations Act 66 of 1995 (hereafter LRA). The right of an unsuccessful or unsatisfied party to a labour dispute, to review or rescind arbitration awards and rulings are set out in section 144 of the LRA.15 The rights to vary and
rescind orders of the Labour Court are provided in section 165 of the LRA.16 In the
case of Herholdt v Nedbank Ltd and Another 17 when applying the review test as
decided in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others,18 the
Court concluded as follows:19
A review of a CCMA award is permissible if the defect in the proceedings fall within one of the grounds in s 145(2)(a) of the LRA. For a defect in the conduct of the proceedings to amount to a gross irregularity as contemplated by s 145(2)(a)(ii), the arbitrator must have misconceived the nature of the inquiry or arrived at an unreasonable result. A result will only be unreasonable if it is one that a reasonable arbitrator could not reach on all the material that was before the arbitrator. Material errors of fact, and the weight and relevance to be attached to the particular facts, are not in and of themselves sufficient for an award to be set aside but are only of consequence if their effect is to render the outcome unreasonable.
The rights to review awards or appeal against labour law judgments can be divested by the operation of the doctrine of peremption. The doctrine of peremption entails that when a party in a legal dispute has more than one available legal recourse, and
15 Section 144(a)-(c) of the Labour Relations Act 66 of 1995 states that any commissioner who has
issued an arbitration award, may on his own accord or application of an affected party, vary or rescind an arbitration award or ruling that was erroneously made in the absence of any party affected by the award; in which there is an omission or error but only to the extent of that mission or error; or granted as a result of a mistake common to the parties to the proceedings.
16 Section 165(a)-(c) of the Labour Relations Act 66 of 1995 states that the Labour Court, acting of
its own accord or on the application of an affected party may vary or rescind a decision or judgment erroneously sought and granted in the absence of any affected party by the judgment; in which there is ambiguity or an obvious error or omission, but only to the extent of the
ambiguity, error or omission; or granted as a result of a mistake common to the parties of the proceedings.
17 Herholdt v Nedbank Ltd and another 2012 33 ILJ 1789 (LAC).
18 Sidumo and another v Rustenburg Platinum Mines Ltd and Others 2007 12 BLLR 1097 (CC). 19 Herholdt v Nedbank Ltd and another 2012 33 ILJ 1789 (LAC).
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he unequivocally exercises one, he cannot subsequently turn back and elect the other.20 This doctrine is founded on the principle that no party in legal proceedings
may be allowed to opportunistically endorse two conflicting positions or to both approbate and reprobate.21 At common law, the doctrine of peremption states that a
party cannot equivocate by accepting a judgment and thereafter decide to appeal.22
Such demonstration of acceptance may result in the peremption of the right to review or appeal, when raised as a defence by a respondent in a review or appeal application. The common law doctrine of peremption is explained in Dabner v South African Railways and Harbours 23 as follows:
If the conduct of an unsuccessful litigant is such as to point indubitably and necessarily to the conclusion that he does not intend to attack the judgment, then he is held to have acquiesced in it. But the conduct relied upon must be unequivocal and must be inconsistent
with any intention to appeal. And the onus of establishing that position is upon the party
alleging it. In doubtful cases acquiescence, like waiver, must be held non-proven.
Peremption consequently has the effect of eliminating or limiting the right to appeal or review labour proceedings. An affected party whose right to appeal was eliminated by a prior conduct that indicates acquiescing the entire judgment, cannot take the entire judgment on appeal. An affected party who acquiesced only a portion of the judgment, will still have a limited right to appeal or review.24 Their right to
appeal or review will be limited as they will only be allowed to focus on the part of the judgment that was not acquiesced.
Attributable to the severity of the consequences of peremption, the South African courts established strict rules to distinguish if acquiescence occurred, prior to reaching a decision whether a party has perempted their rights to review or appeal.25
Peremption in labour law matters usually occurs once an employee accepted a settlement agreement or compensation,26 where the employer took actions to
20 Hlatshwayo v Mare and Deas 1912 AD 242 para 249. The meaning of "approbate and reprobate" is to "accept and reject" and comes from the maxim quod approbo non reprobo which translated in Black's Law Dictionary: 2nd Edition as "What I approve I do not reject".
21 Van Loggerenberg Jones & Buckle: Civil Practice of the Magistrate Courts 606.
22 Harms Amler's Precedents of Pleadings 384.
23 Dabner v South African Railways and Harbours 1920 AD 583 para 594. 24 Samuel v Mograbi 1917 TPD 656.
25 Van Loggerenberg Jones and Buckle: Civil Practice of the Magistrates' Courts in South Africa 606.
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comply with an arbitration award or Labour Court order to reinstate or re-employee the employee.27 Alternatively, compliance and payment of awards made at
arbitration proceedings, will amount to acceptance of the outcome of such proceedings.28 The onus to prove that peremption occurred, is the responsibility of
the party who alleges that there was acquiescence with the judgment or award.29
In deciding if the defence of peremtion should be successful or not, the facts of each case should render the final decision. The courts are required to take note of the facts and circumstances presented in a particular matter, rendering a facts based determination; therefore peremption is fact specific.30 The leading authority that
deals with the doctrine of peremption is Dabner v South African Railways and Harbours.31 It was held that the plea of peremption will only succeed if the
unsuccessful party in a particular dispute undoubtably indicates that he or she does not intend to attack the order or judgment. To determine if a judgment was acquiesced in, requires an analysis of the objective conduct of the affected party and the relevant conclusions to be drawn from such conduct.32
The subjective state of mind of the person, alleged to acquiesced in the judgment, is irrelevant to the enquiry.33 In National Union of Metalworkers of SA & others v Fast
Freeze34 the court held that if there is enticing conduct by a party to a labour
dispute, a mental reservation or decision not to acquiesce in the judgment will not assist the party whose conduct indicates a clear intention to accept the judgment.35
27 Jusayo v Mudau NO & others 2008 7 BLLR 668 (LC).
28 Venture Otto SA (Pty) Ltd v Metal and Engineering Industries Bargaining Council & others 2005 26 ILJ 349 (LC) 352 I
29 Van Loggerenberg Jones and Buckle:Civil Practice of the Magistrates' Courts in South Africa 607.
30 Doorgesh v Commission for Conciliation, Mediation and Arbitration and Others (CA4/2014; C965/2011) 2015 ZALAC 44 para 29.
31 Dabner v South African Railways and Harbours 1920 AD 583 para 594.
32 Venmop 275 (Pty) Ltd and Another v Cleverland Projects (Pty) and Another 2016 1 SA 78 (GJ) para 25.
33 Venmop 275 (Pty) Ltd and Another v Cleverland Projects (Pty) and Another 2016 1 SA 78 (GJ) para 25.
34 National Union of Metalworkers of SA & others v Fast Freeze 1992 13 ILJ 963 (LAC). 35 National Union of Metalworkers of SA & others v Fast Freeze 1992 13 ILJ 963 (LAC) para 27.
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The conduct, when objectively assessed, must consequently lead the Court to the conclusion that the intention is to abide in the judgment or order.36
The doctrine of peremption derived in a multitude of labour law cases and a few will be discussed in illustration of when and how the court will find that peremption occurred. There after cases are discussed where the courts opted for the non-enforcement of peremption attributable to policy considerations. From the discussion of these cases, it is evident that the South African courts have adopted a flexible approach to the enforcement of the doctrine of peremption. The discussion below, consequently introduce circumstances where the courts favoured the rights of appeal or review above peremption in conditions where policy considerations weigh heavier than the mechanical application of peremption. These circumstances and policies are described and discussed in greater detail in subsequent chapters.
2.2 Illustration of the application of the doctrine of peremption in labour law matters
In South African labour matters the application of the doctrine of peremption was illustrated, amongst others, in the cases of National Union of Metalworkers of South Africa & Others v Fast Freeze,37 Balasana v Motor Bargaining Council 38 and National
Union of Metalworkers of South Africa v Fry’s Metals and Others.39 These judgements
are discussed with the purpose of illustrating the courts’ approach to the application of the doctrine of peremption. A proper comprehension of the doctrine and its importance is necessary before the possibility of overriding mechanisms to peremption can be considered.
36 National Union of Metalworkers of SA & others v Fast Freeze 1992 13 ILJ 963 (LAC) para 29. 37 National Union of Metalworkers of SA & others v Fast Freeze 1992 13 ILJ 963 (LAC).
38 Balasana v Motor Bargaining Council &others 2011 32 ILJ 297 (LC). 39 NUMSA obo Thilivali v Fry’s Metal 2015 36 ILJ 232 (LC).
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2.2.1 National Union of Metalworkers of South Africa (NUMSA) & Others v Fast Freeze (hereafter Fast Freeze case)
The matter dealt with 29 NUMSA members who were dismissed by Fast Freeze.40
The Industrial Court established that the dismissal of the NUMSA members constituted an unfair labour practice and ordered compensation of eight weeks’ salary to all NUMSA members concerned.41 Attributable to the large sum of payment
involved, the court granted the respondent, Fast Freeze, the opportunity to pay the compensation in two separate instalments, one month apart.42
On 19 July 1990 Mr Meyer who acted as the attorney for Fast Freeze, sent out a cheque to the amount of R14 784.00 to serve as payment of the first instalment, as directed by the order of the Industrial Court. The NUMSA representative, Mr Dotwana, requested that individual cash amounts should be paid to each individual member.43 Mr Dotwana accepted the payment on behalf of the NUMSA members and
signed a receipt, confirming the payment. The receipt read as follows:44 "I, Mr
Dotwana, a NUMSA official, acknowledge the receipt of R16 217,88 made up in 29 individual packets as the first part of the court order settlement from Fast Freeze Refrigeration". After the NUMSA representative received the first payment, NUMSA opted to file a notice of appeal against the judgement of the Industrial Court.45 The
attorneys of Fast Freeze had no prior knowledge or inclination that the appellants contemplated an appeal. The conduct of the appellants prior to their noting the appeal, which indicated their acquiescence in the judgment, was the acceptance of part of the judgment debt.46
The court had to decide when a party has perempted the right of appeal. The Court had to consider if the judgment was acquiesced, expressly or tacitly, by an unequivocal act fully inconsistent with any intention to contest the judgment.47 This
40 National Union of Metalworkers of SA & others v Fast Freeze 1992 13 ILJ 963 (LAC) 965 J. 41 National Union of Metalworkers of SA & others v Fast Freeze 1992 13 ILJ 963 (LAC) 965 G. 42 National Union of Metalworkers of SA & others v Fast Freeze 1992 13 ILJ 963 (LAC) 965 G. 43 National Union of Metalworkers of SA & others v Fast Freeze 1992 13 ILJ 963 (LAC) 968 A. 44 National Union of Metalworkers of SA & others v Fast Freeze 1992 13 ILJ 963 (LAC) 968 B. 45 National Union of Metalworkers of SA & others v Fast Freeze 1992 13 ILJ 963 (LAC) 968 I. 46 National Union of Metalworkers of SA & others v Fast Freeze 1992 13 ILJ 963 (LAC) 968 C. 47 National Union of Metalworkers of SA & others v Fast Freeze 1992 13 ILJ 963 (LAC) 969 I.
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would entail that a party who elected to accept the judgment, cannot change the election by opting to note an appeal. The question was whether the appellants’ acceptance of the first instalment of compensation payable in terms of the order of the Industrial Court, will amount to "an unequivocal act wholly inconsistent with an intention to contest the judgment".48
On judging the conduct of NUMSA, the court held that they perempted their right to appeal.49 Mullins J established that the appellants’ failure to indicate that they were
contemplating an appeal to the respondent, combined with their acceptance of the compensation, concluded an acquiescence in the judgment, resulting in peremption.50 The court identified the following principles, pertinent to the doctrine
of peremption:51
(a) If a party has a right to appeal or review, the party wanting to exercise his right to appeal loses that right where he or she has acquiesced in the judgment.
(b) Acquiescence may be express or implied from the conduct of the party.
(c) Acquiescence by conduct require firm actions that convey your attitude towards the judgement to other parties.
(d) The conduct must show an attitude to abide by the judgment which is inconsistent with a desire to appeal against the judgment.
(e) The test is an objective test which attempts to judge the indication of a party’s attitude in relation to the judgment. The subjective state of mind or intention of the party is irrelevant.
(f) Where there is such overt conduct, a mental reservation or resolve not to acquiesce in the judgment will not avail the party, which by its conduct evinces an intention to abide by the judgment.
(g) The subjective state of mind of the party who is mentally reserving the right to appeal will be disregarded by the conduct of the party which looks to be inconsistent with such an intention.
(h) The court must be satisfied that the conduct of the party will lead anyone to believe that he/she wants to abide by the judgment.
(i) The conduct must be unequivocal, so if there is more than one conclusion that may be drawn from the conduct in question, it will not suffice to prove that there is peremption.
48 National Union of Metalworkers of SA & others v Fast Freeze 1992 13 ILJ 963 (LAC) 969 I. 49 National Union of Metalworkers of SA & others v Fast Freeze 1992 13 ILJ 963 (LAC) 976 C. 50 National Union of Metalworkers of SA & others v Fast Freeze 1992 13 ILJ 963 (LAC) 976 C. 51 National Union of Metalworkers of SA & others v Fast Freeze 1992 13 ILJ 963 (LAC) 973 G.
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(j) The onus of proving that a party has perempted a right to appeal lies with the alleging party.
(k) Voluntary payment or acceptance of payment as part of compliance of a judgment will usually be sufficient to satisfy a court that the party has acquiesced in the judgment.
Considering the court’s approach to peremption in this matter, indicated that the outward manifestation of the conduct of the party is critical in deciding if there was acceptance of the judgment. If the conduct leads a party to believe that the judgment is acquiesced, the mental reservation of the party will be disregarded. The action of NUMSA prior to lodging an appeal, by accepting the funds, is not something that they were required to do but it was a choice. The acceptance and retaining of the compensation did not support an objective intention to challenge the award that made the payment of the compensation possible.
2.2.2 Balasana v Motor Bargaining Council (hereafter Motor Bargaining Council case)
In the Motor Bargaining Council case52 the question revolved around an employee
who acquiesced in an arbitration award, by receiving compensation as ordered and thereby perempted his right to institute review proceedings. The arbitration award stated that the employee should be compensated, due to his unfair dismissal,53 and
it was decided that reinstatement would be an inappropriate remedy in the prevailing circumstances.54 The employee’s contention was that the commissioner did not apply
his mind and ought to have ordered his reinstatement in terms of section 193 of the LRA.
In terms of this section, a commissioner or court who finds the dismissal of an employee to be substantively unfair, must demand the reinstatement of the employee, unless the employee expressly indicate a desire not to be reinstated,55
alternatively, if the employment relationship became intolerable.56 The commissioner
52 Balasana v Motor Bargaining Council & others 2011 32 ILJ 297 (LC).
53 Balasana v Motor Bargaining Council & others 2011 32 ILJ 297 (LC) para 4.
54 Balasana v Motor Bargaining Council & others 2011 32 ILJ 297 (LC) para 4-6. The arbitrator held that continued employment would be intolerable, and reinstatement would be inappropriate because there was a breakdown in the relationship between the employer and employee.
55 Section 193(2)(a) of the Labour Relations Act 66 of 1995.
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established that reinstatement would not be an appropriate remedy as the employment relationship has irretrievably broken down.57
With reference to the review proceedings, the employer contended that the employee cannot review the arbitration award as there was compliance with and acceptance of the initial award. The employer argued that the compliance was accepted by the employee as the employee did not offer to repay the compensation received.58 The employer further argued, that by accepting the compensation paid
into his bank account, the employee unequivocally abandoned his right to institute review proceedings.59 Molahlehi J established that the employer failed to discharge
the onus of indicating that accepting of the compensation in terms of the arbitration award, peremted the employee’s right to apply for review of the arbitration award.60
The objective facts did not supplement the notion that the employee accepted the funds unconditionally and without reservation of his right to challenge the arbitration award on review. His review application was lodged within a reasonably short period after the payment was deposited into his bank account.61
The mere payment of the compensation into the bank account of the employee did not mean acceptance thereof as the employee might not have been aware of the deposit made. The employee has not acquiesced in the arbitration award by receiving payment in the form of a bank deposit from the respondent. The doctrine of peremption therefore, cannot be used as a defence against the review application in this matter.
This case confirms that not all cases involving payment of compensation and acceptance of such compensation by the employee, will be sufficient to establish peremption. The employee did not physically receive the payment, but it was deposited into his bank account. This bequeaths some doubt as to whether the employee had knowledge of the payment and truly had the intention to accept the payment. In the Fast Freeze case, it was a decision of the NUMSA representative to
57 Balasana v Motor Bargaining Council & others 2011 32 ILJ 297 (LC) para 4. 58 Balasana v Motor Bargaining Council & others 2011 32 ILJ 297 LC para 7. 59 Balasana v Motor Bargaining Council & others 2011 32 ILJ 297 LC para 8. 60 Balasana v Motor Bargaining Council & others 2011 32 ILJ 297 LC para 19. 61 Balasana v Motor Bargaining Council & others 2011 32 ILJ 297 LC para 18.
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accept the payment and to sign a receipt as confirmation. The outward display of conduct and the inference that can be drawn, is a choice to acquiesce in the judgment. In the Motor Bargaining Council case, the arbitration award was made on 5 June 2009; payment was made on 10 June 2009 and the review application was filed on 13 July 2009, which is still within the timeframe embarked by the LRA.62
The short period within which the review application was filed, indicated that there must have been some consultation with Balasana’s attorneys to discuss the review application shortly after the award was received. The onus of proving peremption is regarded as serious by South African courts, requiring a conduct that undoubtably indicates that the unsuccessful party does not intend to confront the order or reward. In finding that peremption did not occur, the court considered the following facts:
1. there was no evidence indicating when the applicant approached Legal Aid for assistance to challenge the arbitration award after receiving payment of compensation;63
2. the brief period from receiving the compensation and filing of the review application;
3. there was no evidence that the applicant acknowledged receipt of the compensation and
4. no evidence was presented of the subjective state of mind of the applicant at the time he decided to accept the money.64
62 According to s 145 of the Labour Relations Act 66 of 1995, any party affected by an arbitration
award may apply to the Labour Court on the basis of an alleged defect with a commissioner’s rulings or award. Such application to set aside the award, must be made within six weeks of the award being served.
63 Although there was no evidence presented to the Court which indicated the exact dates of
consultation, the fact that the review application was filed within a short period from when the original arbitration award was made, is indicative of earlier reservations experienced by Balasana. He had acted on his reservations by approaching Legal Aid and discussing the prospects of a review application. It would be reasonable to infer that there must have been some consultation between Balasana and Legal Aid prior to the lodgment of the review application and that this consultation would have happened shortly after the initial reward was made, in order for Legal Aid to have sufficient time to draft the review application.
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Considering findings of the court in the Motor Bargaining Council case, the writer will argue that the approach adopted by the more recent case of Mdhluli v Commission for Conciliation, Mediation & Arbitration & others (hereinafter Mdhuli case)65 is more
aligned with the principles established in the Fast Freeze case. In the Mduli case, the court noted that the applicant filed a review application within the prescribed six-week period. It was established that this is not decisive to prove that the applicant did not acquiesce in the judgment by accepting the compensation.66 With respect
support is granted to the court’s reasoning that the relevant consideration is the conduct of Mdhluli prior to completing the review application.67 The subjective state
of mind of the applicant when accepting the funds, is irrelevant. To establish peremption, an objective test is used to determine if the outward manifestation of a party’s conduct will lead the other party in the dispute to believe there is acceptance of the judgment, excluding his or her subjective state of mind or intention.68 If the
compensation is accepted with reservation or conditions, it must be communicated to the other party. The mental state of mind of the party reserving the right to institute review proceedings or lodge an appeal, must surrender to his or her outward conduct, which clearly contradicts alternative intentions, apart from acquiesce in the outcome of the matter.
2.2.3 National Union of Metalworkers of South Africa (NUMSA) obo Thilivali v Fry’s Metals and others 69 (hereafter Fry’s Metal case)
In the Fry’s Metals case the issue of peremption was again considered from the approach of challenging an arbitration award after compliance. A NUMSA member
64 The Court established that there was no evidence of the subjective state of mind of Balasana at
the time he decided to accept the money, and that such evidence could have assisted in determining whether it could be said that he had objectively elected to comply with the
arbitration award. This view is in stark contracts to the judgment ofVenmop 275 (Pty) Ltd and
Another v Cleverland Projects (Pty) and Another 2016 1 SA 78 (GJ) para 25, where the courtheld that the subjective state of mind of the person alleged to have acquiesced in the judgment is irrelevant.
65 Mdhluli v Commission for Conciliation, Mediation & Arbitration & others 2018 39 ILJ 1614 (LC). 66 Mdhluli v Commission for Conciliation, Mediation & Arbitration & others 2018 39 ILJ 1614 (LC)
para 23.
67 Mdhluli v Commission for Conciliation, Mediation & Arbitration & others 2018 39 ILJ 1614 (LC) para 24.
68 Mdhluli v Commission for Conciliation, Mediation & Arbitration & others 2018 39 ILJ 1614 (LC) para 24.
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was dismissed by Fry’s Metals, attributable to high lead levels in his blood. NUMSA and Fry’s Metals entered into a collective agreement, stating the acceptable lead levels in the blood of employees at less than 45ug/100ml. Fry’s Metals unilaterally reduced the levels to 40ug/100ml to which the union did not agree. On testing the blood levels of Mr Thilivali, is was established on 44ug/100ml and for this reason, his employment was terminated.70 The matter was referred to arbitration where the
arbitrator established the dismissal to be unfair and made an award for retrospective reinstatement and payment of three months’ salary.71
The applicant reported back to work on 20 July 2009 and received back pay without any reservations.72 In August 2009, approximately three months after compliance
with the arbitration award, NUMSA expressed its dissatisfaction with the award in internal communications, but never indicated this to the first respondent.73
Compliance with the award continued for more than three months without any inconsistency until the review application was filed. Snyman J quoted the Fast Freeze judgement by stating:
If a party to a judgment acquiesces therein, either expressly, or by some unequivocal act wholly inconsistent with an intention to contest it, his right of appeal is said to be
perempted, ie he cannot thereafter change his mind and note an appeal.74
Snyman J also referred to the Motor Bargaining Council case to illustrate that the period between the compliance of the award and review application was an important factor to consider when determining if there was unequivocal acceptance of the award.75 In the Fry’s Metals case the court held that the subjective intentions
of NUMSA is irrelevant as these intentions were never communicated to the first respondent until some period after the arbitration award was complied with.76 The
NUMSA member accepted the reinstatement and the compensation payment in
70 NUMSA obo Thilivali v Fry’s Metals 2015 36 ILJ 232 (LC) para 7. 71 NUMSA obo Thilivali v Fry’s Metals2015 36 ILJ 232 (LC) para 10. 72 NUMSA obo Thilivali v Fry’s Metals 2015 36 ILJ 232 (LC) para 10. 73 NUMSA obo Thilivali v Fry’s Metals 2015 36 ILJ 232 (LC) para 10. 74 NUMSA obo Thilivali v Fry’s Metals 2015 36 ILJ 232 (LC) para 41. 75 NUMSA obo Thilivali v Fry’s Metals 2015 36 ILJ 232 (LC) para 44. 76 NUMSA obo Thilivali v Fry’s Metals 2015 36 ILJ 232 (LC) para 46.
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terms of the award, indicating that the award was acquiesced; therefore NUMSA is peremted from reviewing the award.
In this case, the court reaffirmed that the expressed or implied conduct of the party challenging that peremption occurred, is the determining factor in deciding if there is an indubitably and necessary conclusion that the judgment was accepted. NUMSA internally expressed its grievance and reservation with the arbitration award during August 2009. This did not suffice in proving that it did not acquiesce in the judgment. The outward manifestation of their member, returning to work, or the lack of any outward manifestation of discontent by NUMSA and the lack of engaging with Fry’s Metals on any dissatisfaction or recording any reservation of rights, lead the employer to believe that the arbitration award was accepted and that NUMSA had no intention of challenging the award.
Once again it is clear that the subjective intention of a party who perempted the right to appeal, will be undermined by any objective conduct, displaying an intention to abide or accept the outcome of a matter. In the Fry’s Metals case there was a period of three months wherein the parties all complied with the arbitration award as if there were no reservations towards it. The study’s opinion is that this was a crucial factor that persuaded the court to conclude that there was no other intention but to acquiesce in the award.
The aforementioned cases indicate the instances when the court decides to enforce the doctrine of peremption. The following paragraphs introduce instances where the court decided not to enforce the doctrine of peremption.
2.3 Non-enforcement of the doctrine of peremption in certain labour law matters
There are times when the doctrine of peremption was successfully relied upon and all elements were proven. It is also factual that the doctrine may be disregarded, in the instance where there are policy considerations that function as overriding
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mechanism against peremption. The question subsequently arises: What circumstances would be sufficient enough to justify a court’s decision to ignore a successful plea of peremption and allow for leave to appeal?
In South African Revenue Service (SARS) v CCMA 77 the court established that SARS
took a conscious and firm decision not to appeal against the decision by the Labour Appeal Court (LAC) and that peremption occurred.78 The court explained that it must
be open for a court to disregard acquiescence where the interest of justice would not otherwise be served.79 This was a racial discrimination matter, dealing with the
constitutional duty80 of the court to assist entrenching the values of equality,
non-racialism and human dignity; therefore peremption may be disregarded.81 According
to Mogoeng J, if the acquiescence would not serve the interest of justice, the overriding constitutional standard for appealability should be approved by decisively departing from the doctrine of peremption.82 This case is discussed in greater detail
in chapters to follow.83
In the unreported matter of Minister of Defence v SA National Defence Force, 84 the
court followed the same reasoning and held that a court should disregard the acquiescence where the broader interests of justice would otherwise not be served. In this case it was held that the Defence Force has a constitutional duty to maintain a disciplined organisation.85 It would be inexcusable if an interdict, erroneously
77 SA Revenue Service v Commission for Conciliation, Mediation & Arbitration & others 2017 38 ILJ 97 (CC).
78 SA Revenue Service v Commission for Conciliation, Mediation & Arbitration & others 2017 38 ILJ 97 (CC) para 27.
79 SA Revenue Service v Commission for Conciliation, Mediation & Arbitration & others 2017 38 ILJ 97 (CC) para 29.
80 SA Revenue Service v Commission for Conciliation, Mediation & Arbitration & others 2017 38 ILJ
97 (CC) para 33. See also Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp 2002 6 BLLR
493 (LAC) para 35 and Rustenburg Platinum Mine v SAEWA obo Bester and Others 2018 39 ILJ
1503 (CC) para 37.
81 SA Revenue Service v Commission for Conciliation, Mediation & Arbitration & others 2017 38 ILJ 97 (CC) para 29.
82 SA Revenue Service v Commission for Conciliation, Mediation & Arbitration & others 2017 38 ILJ 97 (CC) para 28.
83 Chapter 4.
84 Minister of Defence v SA National Defence Force (unreported) case number 161/11 ZASCA 110 of 30 August 2012 para 26.
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granted, was to impede the discharge of that duty.86 This matter receives detailed
attention in chapter 3.
In Government of the Republic of South Africa v Von Abo,87 the court held that it
would be intolerable if, in the current situation, this court would be prevented from examining the legal correctness of the first order, as a result of the incorrect advice followed by the appellants or an incorrect concession.88 The court contended that if
the first order is wrong in law, the second order is legally untenable. If the appellants were wrongly advised to endeavour to comply with the first order, thereby perempted the right to appeal, it should not have the undesirable result that the court be held to a mistake of law by one of the parties.89 If the court were to adhere
to the principle of peremption, the result would mean that the court will be bound to what is legally untenable.
2.4 Conclusion
This chapter aimed to illustrate the enforcement of the doctrine of peremption. In some cases90, non-enforcement thereof is indicated, despite the fulfilment of all the
requirements of peremption.91 The doctrine of peremption is still frequently used in
labour law matters where parties often encounter awards or judgments involving financial compensation. A party who alleges that peremption occurred is charged with the strict onus of proving that there was some conduct that aims indubitably and necessarily to the conclusion of an abandonment of the right to appeal and an acceptance of the unfavourable judgment or award. To determine if a judgment was
86 Minister of Defence v SA National Defence Force (unreported) case number 161/11 ZASCA 110 of 30 August 2012 para 26.
87 Government of the Republic of South Africa v Von Abo 2011 5 SA 262 (SCA). 88 Government of the Republic of South Africa v Von Abo 2011 5 SA 262 (SCA) 270E. 89 Government of the Republic of South Africa v Von Abo 2011 5 SA 262 (SCA) 270G.
90 SA Revenue Service v Commission for Conciliation, Mediation & Arbitration & others 2017 38 ILJ
97 (CC), Minister of Defence v SA National Defence Force (unreported) case number 161/11
ZASCA 110 of 30 August 2012, Government of the Republic of South Africa v Von Abo 2011 5 SA
262 (SCA).
91 The requirements are that there must be prior conduct that indicates acquiescing the judgment,
the conduct must be unequivocal & the conduct must clearly convey your attitude towards the
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acquiesced, it will require an analysis of the objective conduct of the affected party and the relevant conclusion.
From the aforementioned judgments discussed, it becomes clear that the courts may disregard the doctrine of peremption where they believe there is a constitutional duty to ensure the interest of justice. This would also ensure that the values of non-racialism, human dignity and equality are upheld. In the following chapters, these policy considerations, regarding peremption in labour law matters, are scrutinised and discussed in greater detail to illustrate how they function as overriding factors that pursued the courts to disregard peremption. As aforementioned, a primary notion of the doctrine of peremption is to ensure finality in decisions, which assists promoting legal certainty. If policy considerations could override the enforcement of peremption, it is important to ascertain the policies influencing the judiciary’s decisions, including reasons for such decisions.
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CHAPTER 3: IN THE INTEREST OF JUSTICE AS POLICY CONSIDERATION 3.1 Introduction
The first policy consideration influencing the enforcement of the doctrine of peremption is the Constitutional expectation92 placed on courts to act "in the interest
of justice". Justice is a legal and social concept that received ample attention throughout time. Plato and Greek poet Simonides attempted to provide a definition to this vague concept of justice. In Plato’s Republic, which was transmitted into South Africa’s legal system by Justinian, justice means providing to each his due or what is proper.93 The Greek poet Simonides’s notion of justice has a judicial aspect
by adding that "giving each his due" concerns administering punishment and rewards according to what you deserve. His definition contains is a sense of proportionality, or "fairness", which society associates with modern justice.94 It is this concept of
fairness which is also favoured by Roman-Dutch law writers such as Voet.95
According to Landman J a need exists to define what is meant by justice in a South African Labour Law context. Although jurisprudence is devoted to this end, he is of the opinion that a theoretical debate is somewhat unnecessary as a simple definition will do: "that justice is performed when one is provided what is lawfully and fairly attributable to one". 96
Following the dawn of the South African constitutional democracy, an embedded policy indicates that law must be applied in such a manner to serve the interest of justice. This can be observed in procedural and substantive law, in judicial precedents and legal writing. Section 173 of the Constitution97 provides that the
courts have the inherent power to regulate their own processes and to develop the common law, whilst considering the "interest of justice".
92 S 173 of the Constitution of the Republic of South Africa, 1996.
93 Republic 423d - 434a.
94 Domanski "Plato, Justice and the Constitution" 2.
95 Voet Commentarius ad Pandectas 11 7
96 Landman "What role for justice in a world class labour relations system" 70- 71.
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The term "in the interest of justice" is frequently referred to in court judgments and serves as a guiding policy for the judiciary and commissioners alike.98 One of the
most challenging facets of this guiding policy is a lack of principled clarity, provided by the South African courts as to what the term "interest of justice" means. Instead, there are merely vague factors, such as the urgency of the matter, the attitude of the parties concerned and the nature of the case before the court,99 which courts
chose to apply on a case by case basis, depending on the circumstances presented by the relevant matter. The above-mentioned approach seems rational in a legal context, ensuring some flexibility in rigid judicial proceedings.100
The Labour Relations Act of 1956 101 extended the role of the Industrial Court beyond
the mere interpretation of the law and provided the court with the discretion to develop the law through the unfair labour practice jurisdiction.102 The Labour
Relations Act of 1995 103 conversely, abolished this discretion of the Labour Courts
and assigned them the more traditional role of application and interpretation of the law.104 The flexible guiding policy of "in the interest of justice" allowed the judiciary
to respond to economic and social states of affairs. This includes an increased sense of equity that leaves the execution thereof to the judge in the individual case.105 It
would seem in this regard, that the interest of justice is a flexible standard that may become a moral assessment of facts.106 Judicial discretion and the court’s power of
interpretation, provide judicial officers the ability to substantially increase the rights, protection and freedom of people.107 According to Mashikaro, when courts decide
cases "on the facts" they mean to allow courts the discretion to exercise their own
98 For example, see National Union of Metalworkers of SA & another v Rotor Electrical CC 1993 14
ILJ 1042 (LAC) para 14; Chizunza v MTN (Pty) Ltd & others 2008 29 ILJ 2919 (LC) para 19;
Minister of Defence and Others v South African National Defence Force Union 2012 (SCA) para 23, Windybrow Theatre v Maphela & others 2015 36 ILJ 1951 (LC) para 10; SA Revenue Service v Commission for Conciliation, Mediation & Arbitration & others 2017 38 ILJ 97 (CC) para 27;
Minister of Higher Education & Training & another v Business Unity SA & another 2018 39 ILJ 160 (LAC) para 13.
99 Rautenbach 2003 PELJ 7.
100 Mashikaro 2015 CCR 291.
101 Labour Relations Act 28 of 1956.
102 Landman "What role for justice in a world class labour relations system" 71.
103 Labour Relations Act 66 of 1995.
104 Landman "What role for justice in a world class labour relations system" 71.
105 Roodt 2003 CILSA 3.
106 Mashikaro 2015 CCR 292.
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judgement, considering the purpose, social and especially moral reasons for having a general rule such as regulating court process in the interest of justice.108
To prevent labour law from becoming outdated and irrelevant in the changing employment environment, there should be some scope for judicial officers to observe the public policy, social needs or background of a case, to come to a decision that, apart from merely applying the law, also ensures justice. The guiding policy of "in the interest of justice", serves this discretionary function and ensures that the courts do not just hold a purely mechanical function of simply applying the law without considering the interest of justice.
Justice has several elements, and various forms can be identified. In labour law, a core element of justice is "social justice".109 In the interpretation of social justice,
there is a further distinction between two possible approaches to social justice in the labour law. The first approach flows from social law, where employment relations are regarded as part of the broader scheme of anti‐discrimination laws. The second approach follows the Marxist notion of inequality in bargaining power between employees and employers, indicating the role of legislation and the judiciary.110 This
chapter aims at a critical investigation into the various elements of the interest of justice as a guiding policy consideration in a labour law context, the interest of justice test, the impact thereof on peremption and how the courts utilised this flexible policy consideration to justify the non-enforcement of the doctrine of peremption in labour law matters.
108 Mashikaro 2015 CCR 302.
109 The preamble of the ILO specifies that social justice was crucial to establish peace. From the
inception of the ILO, there has been an attempt to improve labour conditions for workers so as to prevent social unrest, which could lead to political revolutions.
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3.2 Justice and social justice in the labour context
3.2.1 Labour law’s theory of justice
The fundamental principles contained in the International Labour Organisation’s (hereafter ILO)111 Declaration of Philadelphia can be summarised as follows: Labour
is not a commodity; the importance of the fundamental human rights of freedom of expression and of association; the importance of the continued fight or war against poverty and want,and the principle of tripartism.112 The ILO, of which South Africa is
a member state, significantly participates in the search for foundations of labour law. The notion of "fundamental human rights" and the principle that "labour is not a commodity" belong to the concept of social justice.113 This principle represents the
notion that labour incorporates additional values than mere market value, therefor labour law must be evaluated by considering additional norms and criteria than those favoured by a free market.114 The aim should also be to recognise the non-market
elements of labour, which would include workers behind the labour, their human dignity and their fair treatment. According to Langile:115
The principle that "labour is not a commodity" does not limit itself, and should not be limited, to providing a rationale for limiting the market power of others - it gives us a broader and more positive reminder and rationale for Labour Law.
Labour law can be observed as the part of the law, structuring the mobilisation and development of human capital, which is at the core of human freedom. Policies should be developed to manage the lives of human beings when they enter the workforce whether as employees, independent producers, or under any other legal or economic arrangement or relation of production.116 Legal systems and labour law
should be structured in a manner that aids creating an economic environment where
111 According to Van Niekerk et alLaw@Work 24 the ILO is a specialist agency of the United Nations
that has the core duty of establishing global Labour standards. The ILO comprise three main bodies: the global Labour Conference is the highest policy making body of the ILO, the Governing Body is the executive arm of the ILO and the global Labour Office performs the daily administrative functions.
112 A. 1 of the Declaration of Philadelphia (1944).
113 Hendrickx "Social Justice and labour rights: EU and ILO face palms in the governance web" 6.
114 Hendrickx "Social Justice and labour rights: EU and ILO face palms in the governance web" 6.
115 Langile and Davidov The notion of Labour Law 112.
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human capital is respected and sufficiently valued. It can be expressed as, "individual freedom is a social commitment".117 The paragraphs that follow will indicate how
values that form part of labour law’s theory of justice, such as the worker behind the labour, their human dignity, fair treatment and social justice, are incorporated into the guiding policy of "in the interest of justice" and the impact thereof in the non-enforcement of peremption.
3.2.2 Social justice and Labour law
During the period of 1900 to 1968, when the term "social justice" became a popular legal contention, social justice represented the notion that justice could not only be achieved through established abstract legal rights that were removed from the general society. Justice could be achieved if various social groups deliberated and participated in the design and application of law.118
The ILO always recognised the importance of social justice within labour law. The Declaration of Philadelphia119 was adopted towards the end of the Second World
War, confirming that lasting peace is based on national and International lawsocial justice, which should be the primary aim of labour policies.120 The Declaration on
Fundamental Principles and Rights at Work 121 enhanced the realisation of social
justice by providing the ILO with some binding force without ratification of conventions by member states. Member states were bound to the core values through membership of the ILO and therefore had to take steps to realise these core labour rights.122 According to Langille,123 the core rights are observed as
pre-requirements for achieving social justice in employment. Without these core rights,
117 Langile and Davidov The notion of Labour Law 119.
118 Rodgers "Human rights, social justice and Labour Law".
119 The Declaration of Philadelphia (1944).
120 Smit 2010 TSAR 3.
121 The Declaration on Fundamental Principles and Rights at Work, 1998.
122 The core rights as established by the Declaration on Fundamental Principles and Rights at Work,
1998 were: freedom of association and free collective bargaining, the elimination of forced labour, the abolition of child labour, and the elimination of discrimination.
